COURT FILE NO.: YC-50000-13
DATE: 20130917
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
C.S. (a young person)
Defendant/Applicant
Counsel: Stephanie Henderson, for the Crown Misha Feldmann, for the Defendant / Applicant
HEARD: September 11, 2013
Restriction on Publication
Subject to any further Order by a court of competent jurisdiction, an order has been made by this Court, pursuant to subsections 110(1) and 111(1) of the Youth Criminal Justice Act, prohibiting the publication of the name of the defendant and the witnesses, all of whom are young persons, and any other information related to these young persons that could disclose their identity. This ruling complies with this restriction so that it can be published.
SPIES J.
Ruling on Defence Application to Exclude Adult Criminal Record
Overview
[1] C.S. is charged with aggravated assault by wounding and two counts of weapons dangerous; one with a sword and one with a knife. The Crown alleges that C.S. used a knife to stab R.F. in the stomach and used a Samurai Sword to make gashes in R.F.’s bedroom door. Both C.S. and R.F. were almost 18 at the time of these events. C.S. pleaded not guilty to the charges.
[2] The trial proceeded before me with a jury. The Crown called R.F. and his girlfriend at the time, T.M. as witnesses. At the conclusion of the Crown’s case, C.S. brought an application to exclude his adult criminal record which consists of a single entry; a conviction for first degree murder. This conviction arises out of events that occurred in August 2009, approximately one and a half years after the events giving rise to the present charges. After hearing the submissions of counsel I ruled that the Crown could cross examine C.S. on this conviction and advised counsel that I would provide reasons for my decision. These are my reasons.
[3] After I announced my decision, counsel vetted a draft mid-trial instruction for the jury which I intended to give immediately after evidence of C.S.’s criminal record was heard. That became moot as C.S. elected not to testify.
The Facts
[4] Ms. Henderson introduced R.F.’s criminal record into evidence and a copy was marked as an exhibit. She only asked R.F. a couple of questions aimed at establishing that most of his record was because he had been found guilty of driving while disqualified. She also had R.F. explain that the obstruct justice convictions were as a result of his giving the police the wrong name when he was stopped which he did to avoid getting caught driving.
[5] Mr. Feldmann spent a considerable amount of his cross-examination of R.F. on R.F.’s criminal record. He reviewed each of the twenty plus individual charges and sentences imposed with R.F. He repeatedly highlighted the fact that R.F. had repeatedly breached court orders and lied to police. R.F.'s criminal record includes two convictions for possession of property obtained by crime, both when R.F. was a youth under the age of 18. He was also convicted for theft over $5,000 in March 2009 as an adult, and possession of property obtained by crime. It was not clear from his evidence but R.F. mentioned stealing a car and so one of these convictions may have related to that. R.F. was also found guilty of possession of an automobile master key as a youth. Most of the rest of R.F.’s criminal record relates to his driving a vehicle while disqualified. Those convictions were often accompanied with a conviction for obstruct justice which R.F. explained was because he lied to the police officer about his identity to avoid being caught driving a car when he was prohibited from doing so by court order. In cross-examination R.F. admitted that he lied to “get what he needs.” There is one conviction in October 2008 for failure to comply with recognizance. R.F. was also convicted of being unlawfully at large in October 2012. This charge resulted from his failure to attend jail. R.F.'s last conviction for obstruct peace officer and driving while disqualified in December 2012, resulted in a 120 day jail sentence and a two year driving prohibition. In addition the record contains some driving offences including dangerous operation of a motor vehicle.
[6] In cross-examination R.F. also admitted that he has three outstanding charges for driving while disqualified. Those charges have not yet gone to trial and as such they are not part of his criminal record. During the course of argument on the relevance of these outstanding charges Mr. Feldmann advised that he relied upon Titus v. The Queen, [1983] 1 S.C.R. 259 and that he would be asking that a Titus instruction be given to the jury. I permitted this line of questioning. Mr. Feldmann then put to R.F. that he may have an interest in testifying favourably for the Crown in this trial because he may believe that giving favourable testimony in this trial might help him out with his own case later. R.F. denied this and there is no evidence in this case of any offer from any police officer or Crown to R.F.
[7] During argument of this application Mr. Feldmann conceded that his questions of R.F. on his criminal record and the outstanding charges he is still facing was “central” to his cross-examination of R.F.
[8] The other Crown witness, T.M., was not asked if she had a criminal record. Her evidence provided some support for the evidence of R.F. but also contradicted that evidence. There were also a number of admissions made which provided limited support to the evidence of R.F. It was clear at the conclusion of the Crown’s case that it largely depended on the jury believing much of the evidence of R.F. and finding it sufficiently reliable to discharge the heavy burden on the Crown of proof beyond a reasonable doubt.
The Test
[9] Counsel agreed that the governing test is set out in R. v. Corbett, [1988] 1 S.C.R. 670. In Corbett the accused was facing a charge of first degree murder. He had a criminal record for armed robbery and other offences as well as a more recent conviction of non capital murder. Defence counsel had vigorously cross-examined a number of the Crown witnesses who were eyewitnesses to the alleged shooting. Some of those witnesses had lengthy criminal records. The court held that a witness’ previous convictions were relevant to his or her credibility as a witness, and that on the facts of the case a “serious imbalance” would have arisen if the jury had not been advised of the details of Corbett’s criminal record. Dixon C.J. thought it was important to ensure the jury was not left with the “quite inaccurate impression” that all of the Crown witnesses were “hardened criminals”, but that Corbett enjoyed an “unblemished past” (at para. 33).
[10] I have the discretion to exclude C.S.’s criminal record where its probative value is outweighed by its prejudicial effect. In considering this question I must consider the nature of the conviction; first degree murder, the remoteness or nearness of the conviction to the charges now facing C.S., the fact the first degree murder conviction is far more serious than the charges before the court and is also a crime of violence and the particular nature of the defence attack on the credibility of R.F.; see R. v. W.B., [2000] O.J. No. 2186 at para. 48.
Analysis
[11] Mr. Feldmann argued that the Corbett decision could be distinguished on the basis that in that case the jury would have been left with what would have been considered an inaccurate impression that all the Crown witnesses were “hardened criminals”. He tried to downplay the attack he had made on R.F.’s credibility and submitted there was no suggestion that R.F. was living a criminal lifestyle but rather that he was repeatedly breaching court orders and driving while suspended.
[12] I do not accept that submission for two reasons. First of all, the principles set out in Corbett in my view are not limited to cases where Crown witnesses are portrayed as “hardened criminals”. That of course was an aggravating factor in that case but not determinative. Furthermore in this case, although Mr. Feldmann did not portray R.F. as someone leading a criminal lifestyle, he did make much of his repeated convictions of obstruct justice involving lies to police and ultimately got an admission from R.F. that he would lie when he needed to. It was not clear whether or not that admission was in the context of driving while disqualified situations or was a broader lifestyle admission.
[13] Mr. Feldmann also submitted that C.S.’s conviction for first degree murder was only minimally probative. I do not accept that submission either. In fact in R. v. Saroya (1994), 36 C.R. 4253 the Ontario Court of Appeal upheld the conviction of an accused of assault after the Crown had been permitted to cross-examine the accused on his one prior conviction for attempted murder. The court held (at para.10) that:
A conviction for attempted murder cannot be dismissed as having little probative value on the credibility of a witness. Although it is not a so called offence of dishonesty, which may be probative of deception, attempted murder is such as serious offence that, in itself, it may be taken to indicate that the prospect of a conviction for perjury is unlikely to keep the witness in line. More significantly, it would be open to a jury to find, on all the relevant evidence, that the witness is unlikely to have more respect for the truth than he has shown for human life.
[14] It is also important to note that in Saroya it appears that cross-examination on the record was permitted after balancing the probative value of the record and its prejudicial effect even though there was no attack on the credibility of any Crown witness. I appreciate that the decision does not say this expressly but presume that if that had been done it would have been a factor referred to by the court.
[15] In this case as Mr. Feldmann pointed out, it was the Crown who introduced R.F.’s criminal record. Had Mr. Feldmann chosen not to vigorously cross-examine R.F. on that record, my consideration of this matter might have been different. However, he made the tactical decision to do so and to do so at length. In my view if I were not to permit the Crown to cross-examine C.S. on this prior conviction it would leave the jury with the wrong impression that R.F. lies repeatedly to police, breaches court orders, has committed offences of dishonesty, and given the outstanding charges that this behaviour continues and that C.S. has never had any encounters with the law.
[16] The fact that C.S. committed the offence of first degree murder approximately 18 months after the offences that he is alleged to have committed in this case, is not in my view a relevant factor. The issue is his credibility as a witness in this trial and clearly the fact that he has been convicted for first degree murder is highly probative. It matters not that it came after the alleged assault on R.F. Furthermore a gap of 18 months is not such a gap as to suggest the conviction for first degree murder is remote or of less value, nor is this conviction dated. Mr. Feldmann also argued that the fact the offences before the court were alleged to have occurred when C.S. was a youth is material and that as a young person I should apply the law differently for C.S. I do not accept this submission for the same reason, it is his credibility now that is of concern. Furthermore, C.S. was only a few months under the age of 18 at the time of these offences.
[17] Neither counsel suggested that it was possible to sanitize or edit C.S.’s criminal record. Presumably this was because there seems to be no way to do so. The record consists of only one conviction and because it is a first degree murder charge, that puts its probative value at perhaps the highest in these types of circumstances.
[18] I appreciate that if the jury becomes aware of the fact that C.S. has a criminal record for first degree murder, given that he is facing a charge of aggravated assault, there is a real concern that the jury might engage in impermissible propensity reasoning. This concern was specifically addressed by the court in Saroya at para. 11 in very similar circumstances. The conviction for first degree murder is far more serious than the offences with which C.S. is currently charged and the danger of propensity reasoning is at its greatest because this is a serious and violent crime. However, cross-examination on C.S.’s record should be limited or denied only where the potential prejudice of that cross-examination exceeds the potential probative value of the record. As I have already stated the probative value of the record is high. Furthermore, in light of the vigorous cross-examination of R.F. on his criminal record, a serious imbalance would arise if C.S. testified and the jury believes he has an unblemished past. As the court said in Corbett a properly worded instruction both when the evidence is heard and at the end of the case will ensure that the jury understands how the evidence may and may not be used (at para. 35).
[19] For these reasons I have concluded that the probative value of C.S.’s criminal record outweighed any prejudice in permitting the jury to hear about it. I ruled that the Crown could cross-examine C.S. on his criminal record, if he elected to testify.
SPIES J.
Released: September 17, 2013
COURT FILE NO.: YC-50000-13
DATE: 20130917
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
- and -
C.S. (a young person)
Applicant
RULING ON defence APPLICATION TO EXCLUDE ADULT CRIMINAL RECORD
SPIES J.
Released: September 17, 2013